June 19, 2004

Recently I noticed that there is a collection of student-written, downloadable course outlines on my law school's website. It is a section of the website used by the Student Bar Association, but it is clearly a subsection of the law school's website, with the law school's banner at the top, just like the official pages that contain faculty bios, course descriptions, information about admissions, and so forth. I was quite surprised to find this as part of our website and really irked to see my own name as a hot link that led to some unknown student's effort at summarizing my class. No one has ever asked me if I accepted that use of my name or what I thought of outlines purporting to represent my classes appearing on the law school's website. Reading over some of these outlines, I can see how misleading they are. In fact, I can see material in these outlines that is the source of some of the most puzzlingly incoherent things I've read in some of the worst exams (a good reason to give closed-book exams).

I do understand the one good reason for making the outlines available: to prevent students from feeling bad that other students have access to outlines that they are unable to see. Here's a story one of my colleagues tells:

In my heart I hate the idea [of outlines on the website], but I recall when I was in Law School, the Law Review kept a library of past outlines from law review staff and editors. They were given ONLY to other law review folks and tightly guarded. There was an internal penalty from the Editor-in-Chief if there was any thought that you even allowed, say your roommate, to even glance at one. These outlines were much lusted after by other student because they were LAW REVIEW outlines.

I always believed in my own outlines and never used anyone else's, but I was aware that other students really thought they would benefit from them.

The Journal of [Not Law Review], of which I was an Articles Editor, shared an internal office door with the Law Review. We had a key because we shared certain equipment with them. One night a rascally friend and I went into their offices late at night, took the entire library, carried it down to an all-night copying store and copied every one of them. The next morning we opened a stand in the student atrium selling copies for the price of duplication.

All the usual drama ensued, but in the end, Law Review sneakingly felt a little dirty for behaving in such an elitist way (this was [name of Law School], remember) and grouchingly backed off. The Editor-in-Chief never spoke a word to me again until we graduated.

It's interesting, I never felt the slightest moral qualm about doing it; in fact, we were so elated we had to keep quieting each other's giggles in case we should be detected at 3 am. Today, I feel a little more dubious about it, but I guess that's why it is good most of us go to school, where foolish boldness is sometimes important, when we are young and not middle-aged.

The elitism issue is interesting, but access to some student-donated outlines on the website is no assurance that there are not better outlines hoarded by elite sub-groups. Isn't there a temptation to donate inferior outlines to waste the time of or deliberately mislead other students, who are your competitors on an exam and whose poor grades will improve your position on the curve? I'm not saying I think any of our fine students would give in to that temptation, but shouldn't you worry an awful lot about the quality of the outlines that are made generally available? Even when the outlines are good, they aren't anywhere nearly as good as your own genuine preparation would be, they are likely to be out-of-date, and you will have to waste time working on checking their accuracy.

Law students: the formula for preparing for a law school exam is simple. Read the cases carefully. Write a short summary in your own words after you've read the case. If you can't do that, reread the case until you can. Go to class, and use the class to reinforce your confidence that you are summarizing the cases well on your own and to deepen your understanding of how courts decide cases and what arguments count as good legal arguments. After class, reread your case notes and your class notes and write a summary, as short as possible, combining the two. When the exam nears, reread those after-class summaries and compress them into the shortest form you can: this will be an outline that is very meaningful to you, but not to someone who has not gone through those steps. Right before the exam, reread your outline until you know that you know everything in it. That's it! Don't retrace these steps. Don't waste time with anyone else's outline or study guide. Don't waste time being envious of study material someone else has developed. There is never anything better than the material you develop yourself.

The key line in my colleague's story is: "I always believed in my own outlines." If you don't already believe in your own outlines, you are hurting yourself by not preparing in a way that will build up your confidence in your own capabilities. You're going to need that confidence later.

and a sticker found on a nearby dumpster. The first two windows are Ragstock, a second-hand clothing store, which is always redoing its windows with homemade art. The third window is Badger Liquor, previously photographed here.

Moore's film title "Fahrenheit 9/11" is a play on the Bradbury title "Fahreheit 451," and Bradbury is demanding an apology. (Why all the stress on apologies these days? It wasn't so long ago that people got steamed at apologies on the ground that they implied that just saying you're sorry is enough.) The Straits Times reports:

Bradbury, who hadn't seen the movie, said he called Moore's company six months ago to protest and was promised Moore would call back.

He finally got that call last Saturday, Bradbury said, adding Moore told him he was "embarrassed."

Joanne Doroshow, a spokesman for Fahrenheit 9/11, said the film's makers have the "utmost respect for Ray Bradbury."

Six months to return a phone call to a person you have the utmost respect for? All I can say is it's too bad an indie film crew wasn't following Bradbury around all that time while he was trying to get in touch with Moore. It might have made a funny documentary that could have been called "Michael and Me."

But to answer my own question, Ray Bradbury should be mad, and not just about the long wait time for the phone call. Moore's title will pop into people's heads when they see Bradbury's title. And Moore's documentary is very strong stuff, designed to elate Bush-haters and be completely unwatchable for people who aren't already quite opposed to Bush. From what I've heard from my son, who saw the film the other day in New York, the film is a disjointed montage of clips that doesn't even make an attempt at providing coherent information. It is just: images to hate Bush by. Why should Bradbury want his great classic book linked to that? If "utmost respect" were really felt for Bradbury, his title would not have been used without his permission.

I'd like to hear Moore or Moore's spokesperson attempt to say something credible about why the claim of "utmost respect" isn't a blatant lie. And I'd like an obnoxious interviewer to hold a microphone in his face and ask the question, then follow him around re-asking the question, and film the whole set of encounters, and edit the film into a montage that makes Moore look as bad as possible, then spend as much time as possible trying to get Moore to watch that film and film those efforts to reach Moore. If you don't end up with enough material for the film "Michael and Me," just edit in various news clips that will make it seem like he's responsible for ... Oh, I can't even write it. It's all too mean and unfair to make a movie Michael Moore-style.

UPDATE: I credited the Straits Times website, but it is an AP article, which you can also see here. The article seems like it will be drawing a lot of commentary (Metafilter is discussing it). I note how quickly the discussion focuses on the question whether Bradbury has a legal right to force Moore to change the title and want to emphasize that I'm not talking about legal rights here. People have a strange way of assuming that if there is a legal right in the general area, then as long as you don't violate the legal right, you don't deserve criticism.

In an endorsement of my "why blog" post from yesterday, Jeremy makes a joke based on my name that, as he recognized when he made it, is hard for a Mac user like me to get. I did eventually get it, but it got me wondering why the Apple people decided to call the key "option" instead of "alt." Is there something unfriendly sounding about "alt"? I can understand wanting to replace "control" with a nice little outline of an apple. (Note to Gwyneth Paltrow: Control could be a nickname for the baby.) Maybe once Apple started renaming computer keys they kept renaming things, trying to make Mac-using feel like a warm, enveloping environment. My favorite Apple ouster of an unfriendly term is the rejection of the verb "boot" to refer to turning on your computer.

June 18, 2004

Cliff made the cut! A few hours ago, it looked as though Cliff would end up one stroke away from making the cut. But the way it fell out--I'm not really sure what went on in those last 2 hours of play--they drew the cut at +5 and not the predicted +4, so Cliff Kresge will be playing the final two rounds of the U.S. Open. Yay!

UPDATE: And Cliff--he's my nephew, folks--ends up close to the bottom of the pack. Too bad! There's always next week.

Ambivalent Imbroglio emailed me, asking why, as a lawprof, I've taken up blogging. He's a law student interested in what motivates lawprofs to blog. I suppose the fact that I'm blogging an answer to email (which he suggested) rather than responding by email is the first hint of the answer to the why blog question.

I started blogging back in January, shortly before the Spring 2004 semester began, and after a period of being extremely busy with a series of scholarly writing commitments. There I was, neatening up my office one leisurely day in January:

I was in the midst of cleaning out my office, having just covered the floor with books and papers. I paused the direct streaming "Fresh Air" I was listening to and checked my email, which included a colleague's description of her reasons for starting a blog. I had just emailed her about my admiration for her and my own timidity: "I'll have to think about getting up the nerve to do this sort of thing. It seems if you're going to do it, you need to become somewhat chatty and revealing, which is a strange thing to do to the entire world." Then it seemed altogether too lame not to go ahead and start the blog.

That's the second post ever to appear on the blog. The first post was explaining the name choice, which I soon abandoned, for reasons I posted about back in January. The colleague referred to in that post is Nina Camic, whose link appears in the blogroll over there in the sidebar. She had been influenced by Jeremy Freese (also in the blogroll), who is in the Sociology department, and who is blogging today about how sociology profs don't blog as much as lawprofs (or participate in email list discussions). My colleague across the hall, Gordon Smith, was also already blogging, but I never regarded his blogging as a reason why I should blog. He had a particular blog-niche, his specialty of entrepreneurship, and he was using his blog in a particular way that didn't make me think there is a place for me. I suppose I was waiting for years for someone to say to me "You should blog." Maybe it seemed that because others had done it first, it would be unoriginal of me to do it too.

I had been reading blogs quite a lot, especially since the 9/11 attacks. Living in Madison and reading the New York Times every day, I really felt hungry for different perspectives at this point. It meant a lot at that time to read Instapundit and the people he was linking to. I found myself exchanging email with my two sons (both college students at the time) with links and comments, which ended up seeming very much like blogging, but with an extremely limited audience.

Though I was behind the curve about blogging, I was ahead of the curve about email lists. My FedCourts email list was, I believe, the first of the lawprof discussion lists, and CivPro followed soon after that. I think that was 1995 that I started those lists, which I still maintain today. I also started a faculty discussion list in the Law School here around that time, back at a point when I had to keep explaining to people what it meant to activate your email and when one person in the Law School begged me not to start such a list on the theory that it unfairly discriminated against people who didn't want to use email. All of those email lists and others (especially Conlawprof, which Eugene Volokh maintains) have been an outlet for discussing law and law school topics, but they have also been unsatisfying for several reasons. The law school email list has never unleashed the kind of vibrant discussion I was hoping for. Many people balk at putting things into writing for one reason or another, and the threads would die off way too early. You can't do all the talking on those things, so I found myself stifling most of the things I might have said. I was disappointed, for example, that after the 2000 election everyone wasn't excited about talking about the details from day to day. I forwarded email from the Conlawprof and the FedCourts lists to the Wisconsin faculty list, but stopped when I heard the first too-much-email complaint. If you're the most talkative person on an email list, a lot of people on that list will see you as something akin to a spammer. And there was never much range to the topics discussed. You couldn't really chat about American Idol or the contents of your junk drawer. Email lists are also unsatisfying because everyone who receives what you write also receives email from people who jump on what you've written, and many times these people write intemperately, making personal attacks or getting weirdly outraged. Often they just misread what you've written. Every time you check your email, you feel a certain anxiety about what people are saying about you on the list, and responding can become a chore.

So when Nina gave me the slightest personal invitation into blogging, I accepted. I really had been wanting to do it for a long time. Once you start, you discover from day-to-day why you are blogging and what your subject matter is. You have a record of what you're interested in and can go back and learn a lot about yourself. I surveyed my interests after the after the first 10 days--I actually counted the first 100 names dropped, to get a picture of what had caught my eye. I haven't formally surveyed myself since then, but generally I'm interested in seeing what I'm interested in. So many thoughts run through your head every day as you observe the world around you and read or have conversations or remember things from long ago. The blog form is a wonderful thing, because it creates a habit of writing every day, allows you to write about anything, and transforms everyday passive experiences like web-reading, print-reading, and TV- and movie-watching into an active process of writing. Once you know people are reading you, you feel even more activated to keep writing. You can see how many people are reading you, who is linking to you, what words people have Googled before coming to your blog--that's all quite amusing and energizing.

As to the law part of all of this: I like to have a place to opine immediately about various things about law and law school. I especially like being in a position to write about new Supreme Court cases within an hour or so after they are issued. When the Newdow case came out this week, I found that really exciting, and wrote the equivalent of 7 pages on the case that day (even though it was otherwise a busy teaching day, the first day of my summer Conlaw class, and I had several hours of exam-grading that had to be done). If it weren't for the blog, I would not have read the case so intensely, so quickly. I would have scanned it and perhaps planned to write about it in the next month or so, but the blog created a great momentum and made it quite satisfying to try to figure things out on the first day and to put out some written analysis that people could link to.

I also like having the opportunity to convey some of the feeling of what it is like to be at the University of Wisconsin Law School, which is a special place, and in Madison, Wisconsin, which is also pretty special. Maybe I can influence some law school applicants to consider coming here rather than somewhere else or just make some people who want to come here anyway have something of a feeling (a good one, I hope) for the place that they will be going. Maybe some alumni and other former residents will enjoy checking in here to reminisce about good old Madison. There are also some issues about teaching law that I like to be able to air my opinions about, and the blog is a great place to do it. For example, very soon I'm going to blog about the downloadable class outlines that are available on the Law School's website.

Finally, after the first 2 months of blogging I figured out how to post images here, and that led me to buy a digital camera. The process of walking around in Madison and elsewhere with an eye out for things photographable is extremely rewarding in itself. Being able to put the pictures where a lot of people can see them has been probably the best part of blogging for me. I went to art school a long time ago, and I know what it is like to produce a lot of images that are not seen. So the ease of reaching out with the pictures through the blog is a miraculous pleasure.

Let me just end this long post by saying, the blog is a great format because of its day-to-day entry structure, the ease of reaching out to the whole world, and the power of the link. But it's just a format, the way a magazine or a slot of television time is a format. You can put anything you want into it. I know that some lawprof bloggers are trying to be very strictly focused on legal topics and others blend law with some other things, especially political news and analysis. I haven't set out in advance to have any particular set of things on this blog. I get up in the morning and know I will blog about something even though I have no idea what it is yet. But I'm interested in finding out what it is and gratified to see that other people are too.

But beauty is everywhere. Turn your head just to the left of that last sight and see this:

Down the block, there is the Jamaican Arts & Crafts Shop, where the sign will proudly show the colors of the Jamaican flag, even though yellow doesn't show up well and makes "crafts" look like "rats":

You can get a latte at Café Zoma (where I am right now, with WiFi). It looks like this inside:

Or you can sit out in bacK:

Have some cake, too:

Maybe Sugar Shack, the used records store across the street will be open. The sign in the window sets the opening time at 12, but adds, "Sometime soon I'll be changing the opening time to 11, or maybe even 10:30, but for now I probably won't be here til noon." Even if it's closed, the windows offer up an entertaining nostalgia experience. Note the thoughtful placement of the AC/DC box set at the feet of the AC/DC T-shirt-wearing Butthead:

The Platters, the Beatles, the Monkees--grouped together because of the "the"? Because of the smiles? Because of a musical affinity?

Let's put Nixon next to Clinton, perhaps only to show how long the old phoney money novelty business has been milking the same joke:

And here are Elvis and Ludwig (Beethoven's head is cracked, possibly from rolling over):

You can contemplate the significance of an inverted Star Trek mug poised in front of a reel-to-reel:

Remember the guy in college who stuffed his dorm bed full of dirty clothes and then put this album cover on the pillow, so it looked from a distance like there was an insane guy in his bed? That ranks very high on my list of the funniest things I've ever seen in my life. Here's the sublime cover opened up with the trees across the street reflected in the window:

The Guggenheim Museum has now opened its exhibition of 35 sculptures of Constantin Brancusi. I went to the museum two weeks ago when I was in New York for a few days, and the lower part of the Wisconsin architect's spiral ramp was closed to visitors. So I got a discount on the admission price--$10 instead of $15--and went in to see a big show of photographs of all different sorts, linked only by their interest in the subject of hands. I also got to peek over the barriers and see the Brancusi sculptures being tucked into the grand niches of the lower spiral. I couldn't take photographs of this, but photography is permitted in the central circle of the ground floor, where they had just painted the platform for "Miracle (Seal I)" and were speed-drying the wet paint with big fans. The NYT, in its article today, particularly loves the way the old seal looks in what I see is officially called the "rotunda" and generally loves the way the way Brancusi fits into the Wisconsin architect's brilliant space:

The first signal of the perfect fit is one of the most endearing of the museum's 11 Brancusis: the white marble "Miracle (Seal I)" centered on the floor of the rotunda. At ground level, this semi-abstract rendition of an alert seal on its broad, circular limestone base conveys discreet jubilation, like a circus with the sound turned off. As you wind upward, the work also suggests an unusually full-bodied sundial or ritual marker, the still point of a sacred site. (Just in time for the summer solstice.)

June 17, 2004

I watched the first season of the show and I've watched the first episode, but I'm not sure yet if I'll be able to stick with it. The main thing I don't like is that it is a parody of the dating shows, particularly The Bachelor/-ette, and I've never watched those [Bachelor/-ette], so I'm not going to get the references. For example, on the first show, the two characters (actors) who are supposed to pick the love of their lives are told to eliminate three contestants each, judging them entirely on first impression. There are about fourteen contestants at this point, all but two of whom are actors pretending to be real contestants. The two main actors give all six of the black balls--symbols of elimination--to contestants who are members of minority groups. Then they had to do a voice over to explain why that is supposed to be hilarious and that the problem is the way minority contestants are eliminated early on other shows. But that can only amuse you if you've been irked or outraged by noticing this on the other shows. It's like watching a political satire based on public figures you don't know anything about.

The main thing I know about dating shows is that the people are boring. They keep meeting and having nothing to say to each other (except "I felt a connection" or possibly "a real connection"). I have watched a few of the shows: Boy Meets Boy, Joe Millionaire, and Cupid. Only Cupid was interesting (although overall an immense waste of time), because it was structured like American Idol and the American people got to vote for the candidate they wanted to keep seeing. That became truly hilarious because there was a character the woman looking for love could not tolerate, and the American people--one mischievous segment of it, at least--decided they wanted to see more painful dates. I'm not worried that Joe Schmo will be boring, though, because the actors are likely to talk a lot and make a lot of trouble for the two sincere contestants. I'm just afraid it won't be fun to watch a send-up of shows I haven't seen. But I hate the genre, so maybe I'll enjoy the satire--if it's mean enough.

The main reason I think I might like it is that it will be interesting to have two "Joe Schmos" rather than one, especially since one is a woman. So: Joe and Jo ... really: TIm and Ingrid. And the cool thing about Ingrid is she's always threatening to catch on. She's always talking to the actors and putting them on the spot. She started questioning everyone in the first five minutes, which caused one of the actors who was only supposed to stand there for a minute and get blackballed to slip up and mention her agent. Ingrid observed that several of the actors seemed rehearsed (which they were) and said it was like "The Truman Show." Yet the guy, Tim, is just hanging out, much like Matt, the season 1 Joe Schmo. Tim, like Matt, is pretty much mesmerized by the pretty women and enjoying the fun. He's just not noticing. Behind the scenes, we see the producers freaking out and saying "Get him outta there" when Ingrid starts taking about "The Truman Show." Yet Tim notices nothing. His mind, as opposed to his body, is just not engaged enough to pick up any clues. He's believing what he wants to believe.

(Somehow, I think this contrast is related to the discussion over at Volokh Conspiracy and Andrew Sullivan (pointed out by Instapundit) about why woman and gay men tend to put more effort into their physical appearance than do heterosexual men. I'd say: the effort seems to really pay off. Tim and Ingrid were both put into a setting where they are surrounded by completely attractive would-be partners, and Ingrid kept being perceptive and suspicious about the hidden motivations, but Tim was just loving what he saw. One can say that someone pursuing Ingrid would need to pay attention to appearance but also to a lot of other things, while someone pursuing Tim could put virtually 100% of her effort into outward appearance with the aim of causing a mental shutdown that would make all nonphysical deficiencies unimportant.)

Anyway, it may be quite fun to follow the Tim/Ingrid distinction.

Two things I learned from the official Joe Schmo blog (discovered via Throwing Things, which will be blogging the Joe Schmo Show): the falcon that swooped in with the plot twist message was named Montecore because that was the name of the tiger that attacked Roy (of Siegfried and Roy), the character Ambrosia is based on Omarosa (of The Apprentice).

My summer class has been meeting in one of the classrooms that looks into the atrium. It's a bit underventilated, but I've just scored a change of venue. Beginning Monday, I'll be here, looking out onto Bascom Mall. Ah!

Here are three signs from Main Street in Mt. Horeb, Wisconsin. This one is, I think, a beautiful example of a folk-art style sign. I especially love the irregular lettering (which neatly sits on a ruled edge).

This is a very typical example of Wisconsin humor:

This is a close-up of part of a painted window that reads "Cottage Charm."

Here's a cool front-page article in the NYT about the fancy RVs some golfers live in on the road. Like the Osbournes, some golfers just bring their whole family along with them as they tour. The PGA Tour provides day care for the kids, and, according to the article, is looking to provide "home schooling," as there are 467 kids who travel along with the Tour. It's kind of a glamourous lifestyle, traveling around in a $500,000 RV. But though you may have "granite floors, plasma televisions, lamp-shaded wall sconces and retractable bay windows and awnings," it's packed into 500 square feet of space. And what if the golfer has had a bad round and needs to get it together for the next day and the kids are tired of everything revolving around dad's mental state?

FURTHER UPDATE: At this point--Friday at 7:42 CDT--the 2 over par finish is at 42nd place, as some players are still trying to finish the first round and others are beginning the second round. So I'll never be able to get the place number right for the first round, taken alone. Cliff starts at 1:30. Good luck!

What if there were a power outtage in the middle of the night, and you had to prepare to teach an 8 am class, and you'd set two alarm clocks (well, an alarm clock and an alarm TV), but both of the alarm clocks were connected to power cords and had no backup battery?

Let's just say it's a good thing I tend to wake up naturally and take a look at a watch. On Monday, I came home from work at about 7 pm, fell asleep, woke up and looked at my watch, saw it was 7:40, and seriously thought it was Tuesday morning and class was in 20 minutes. For a few seconds, I quickly gathered my thoughts about how to make it in in time and be ready to teach for 2 hours when I hadn't looked at the notes or the material since the beginning of the previous semester. I was quite ready to take it all in stride when it occurred to me that, though it was still light out, it was 7:40 pm.

June 16, 2004

Remember the Bob Ross "Joy of Painting" show? How fascinatingly soothing and absurd it was! Why was that show on PBS?! Did people actually try to paint along with him? Apparently so. If they did, the better ones probably produced something like that painting discovered in Mt. Horeb.

Aliens
Amarcord
Amores Perros
Aparajito
Belle de Jour
The Birds
The Birth of a Nation
Blowup
The Bride of Frankenstein
The Bride Wore Black
Casablanca
Citizen Kane
City Lights
Cleo From 5 to 7
The Cook, The Thief, His Wife, and Her Lover
Dancer In the Dark
Das Boot
Fanny & Alexander
Fantasia
The 400 Blows
Frankenstein
Full Metal Jacket
The Godfather
The Gold Rush
Gone With the Wind
Grave of the Fireflies
The Great Dictator
Greed
Hannah and Her Sisters
Heavenly Creatures
Hiroshima mon amour
Horse Feathers
Invasion of the Body Snatchers (1978)
Ivan the Terrible Part I
Ivan the Terrible Part II
La Dolce Vita
Last Year in Marienbad
La Strada
Manhattan
Modern Times
Network
Night of the Living Dead
Nosferatu
Orphans of the Storm
The Phantom of the Opera (1925)
Psycho
Rear Window
Rebecca
The Searchers
The Seventh Seal
The Shining
Sleeper
Spirited Away
The Story of Adele H
Sunset Blvd
The Terminator
Throne of Blood
Titanic
The Wizard of Oz

Feel free to copy the lists--link to this blog and give Chris credit--and boldface the ones you've seen or resort the list with your top 50 or whatever. Note that documentaries have not been taken into account. I'd like to see his list of top 25 documentaries.

UPDATE: I went through Chris's lists, and here are the ones I haven't seen: (of the top fifty) Contempt, Sunrise, Imitation of Life, Playtime, Alexander Nevsky, My Life To Live, Two English Girls, Story of the Last Chrysanthemums; (of the next 56) Amarcord, Fanny & Alexander, Greed, Last Year in Marienbad, Orphans of the Storm.

DVDs that have been sitting around the house for ages that are on that list and I've been meaning to watch: Contempt, Alexander Nevsky, Two English Girls, Amarcord.

Additional films on the list that I would actually like to see: Sunrise, Playtime, My Life To Live, Story of the Last Chrysanthemums; Fanny & Alexander, Greed.

Films I will probably never see: Last Year in Marienbad, Orphans of the Storm.

Of the films on his list I've seen, these are the ones I especially like (but I can't put them in order): The Bicycle Thief, L’Atalante, Annie Hall, Vertigo, Dr. Strangelove, The Passion of Joan of Arc, Nights of Cabiria, Some Like It Hot, Breathless, The Cabinet of Doctor Caligari, Aguirre the Wrath of God, City Lights, Cleo From 5 to 7, Grave of the Fireflies, Heavenly Creatures, Modern Times, Psycho, Spirited Away, The Story of Adele H, Sunset Blvd.

That's a pretty nice oil painting for $22.50, don't you think? It seemed a bit sad with that tag, not just because of the price, but because it had to specify "painting of lake and trees." Imagine being the artist and knowing the thing was not only being sold so cheap but the subject was not self-explanatory. Aren't those coats horrible? Horrible but awesome. Did the happy face crockery make you feel old and sad? Did it seem incongruous or quite fitting to find it with those other things? "Hot Burning Feet"--old ads really did exaggerate minor health problems with vivid imagery. Aren't "peds" just little low socks? "Farmers in a Changing World"--the date on that book is 1940. I wonder how many people had "The Buck Stops Here" signs on there desks? That sign must have adorned many places where the buck didn't stop. And what was the big fascination with the Discus Thrower back whenever the hell these reproductions were sold?

I felt a little bad that I took all those pictures and didn't buy anything. So maybe when you go to Mt. Horeb, you'll buy something at Main Street Antiques. If I had bought something, I would have bought this and given it to my sister, whose last name is Kresge:

It's nice to think about a time when there was no K-Mart, just a lot of S.S. Kresge stores. And it's nice to think about a time when people shopping for polish were thinking first and foremost of polishing their radios. And quite strange to think that you used to polish your furniture and your car with the same stuff.

My summer Conlaw class, after three days, is actually already one-sixth of the way through (not counting the exam day). It's been interesting to get up early and have so much work done by 10. Actually, it's been pretty fun. There are 15 students in the class, and they must all realize it's a special and serious commitment to get through Conlaw in such an intense, short period. And maybe everyone who dares to undertake the course this way is a morning person. But they've been a lively group so far.

The class does make it nearly impossible to add to the blog before noon Monday-Thursday. I haven't even finished reading the paper yet. So I need an appropriate new rhythm to keep up with the blogging life, but maybe by the time I figure it out, the class will be over already. But I'll still blog every day, even if unrhythmically. New Supreme Court cases throw the rhythm off anyway. But then so does a photographic excursion.

I see I got a lot of traffic over that Hillary/Streep post yesterday, and I realize that the expression "Hillary-haters" is now part of my website, capable of drawing people that are actually looking to tap into some Hillary-hating. If my post yesterday isn't clear enough: I'm not a Hillary-hater. I don't love her or hate her. I don't like Bush-hating either (or Bill Clinton-hating). These people are just politicians. I wish people could calm down and evaluate their capacities and policies with some rationality and save their passionate emotions for their personal lives. And for the love and appreciation of art. The point of that post was to express admiration for Meryl Streep and to disapprove of people who would let politics motivate them to diminish the work of an artist.

Maybe what I need is a nice photographic excursion. Yes, a trip to some obscure Wisconsin town, looking for some photographable local oddities...

June 15, 2004

where everyone who had thought environmentalism would seize the public imagination because of the film "The Day After Tomorrow" got embarrassed and started to act as though they always knew the film was a preposterous summer disaster romp? Yet here's an AP piece printed today, about a serious, scientific UN report on the high rate at which the earth's land is turning to desert, that ends with the sentence: "The warning comes as a controversial movie, 'The Day After Tomorrow' is whipping up interest in climate change, and as rivers and lakes dry up in the American West, giving Americans a taste of what's to come elsewhere." Is the AP really that slow on the uptake, or do they think their readers are incapable of absorbing any scientific information that isn't sugared with pop culture references?

I mentioned the other day that TiVo snagged this movie for me and that judging from the beginning, it seemed to be a good movie for lawyers. (I remembered watching it long before I went to law school and liking it.) Anyway, I watched it last night and do recommend it for law students and lawyers. There are many points where Jimmy Stewart proclaims things like "I am an attorney at law!" in a way that is quite charmingly pro-lawyer. John Wayne plays his foil, the kind of guy who says things like "The point of a gun is the only law that Liberty understood." No, he doesn't actually say that line. That's a line from the song "The Man Who Shot Liberty Valance," by Gene Pitney, which is not used in the movie. (Listen to a clip of it here.) But John Wayne says things like that through the movie, so it's a big movie about law versus raw power. And it includes a lot of nice Jimmy Stewart-style idealism, nicely on the subject of law and lawyers. Listen to him, all you lawyers and law students, and think about whether you could shout out with pride and defiance "I'm a lawyer!" without a hint of sarcasm or humor or irony of any kind. Most of the lawyer types I know could easily say the kind of scoffing, cynical things that John Wayne says throughout the movie. The Jimmy Stewart character even makes a big show of hanging out a shingle, which, as you might predict, gets shot down by Liberty Valance at one point.

There's also some quality material about journalism in the film, including the famous line, "When the legend becomes fact, print the legend." And there's some good material about politics too: the Jimmy Stewart character is nominated as a candidate and his rival tries to win votes by having a cowboy ride into the convention hall and up onto the stage where he stands on the horse and does rope tricks.

Paramount Pictures is worried that Meryl Streep's edgy, chilling performance as a U.S. Senator in The Manchurian Candidate, which opens at the end of next month, is too close to the real Senator Hillary Rodham Clinton, a pal inside the studio tells me.

As a result, studio honchos have asked director Jonathan Demme to make little recuts and trims here and there to remove some of the more Hillaryesque gestures and expressions in the flick.

Hillary Clinton is a politician. Meryl Streep is one of the greatest actors in this history of cinema. This is the way Streep conceived the role, and Streep should prevail.

At first, I thought this was a publicity stunt: stir up some phoney controversy and make people think about your movie or even feel they need to see for themselves. But there is a whole unseemly political angle. Fly's source says, "Meryl has the Hillary hand gestures totally down pat ... I don't know whether this is something she picked up subconsciously or an idea Jonathan gave her, but she's totally dead on. You feel like you're watching Hillary Clinton conspire to take over the world. The Republican Hillary-haters should totally eat this up."

Why didn't someone stop her before she did the performance this way? I say, once she's done it, you can't cut it for political reasons. It's Meryl Streep! Art over politics!

It's late and it's been a long day, the first day of summer Conlaw and the deadline –met!--for Spring semester grades, but let me get my final Newdow post in. I can see I got a nice Instapundit link for my multiple Newdow posts, so I want to take the opportunity to talk about Justice Stevens' approach to standing, which decided the case for the majority. I'm particularly interested in this aspect of the decision, not just because I'm a Federal Jurisdiction lawprof, but because I've often written about the interplay between state and federal law and the effect of the state court's authority over state law on the jurisdiction of the federal courts. (Bush v. Gore presented questions of this kind, by the way.)

In Newdow, the power of the federal court to hear Newdow's case depended on Newdow's standing as a plaintiff. Federal standing has two aspects, constitutional and subconstitutional (usually termed "prudential"). To meet the constitutional requirement of standing (which is derived from the "cases" and "controversies" language in Article III of the Constitution), the plaintiff must have a "concrete and particularized" or "distinct and palpable" injury. No one on the Court seriously questioned that Newdow had such an injury. It's not surprising that the Stevens opinion doesn't take this aspect of standing seriously, because the Justices who joined this opinion (other than Kennedy) usually aren't very strict about standing requirements, and the "prudential" standing problem they found accomplished the task of obliterating the case. It is surprising that Chief Justice Rehnquist, who usually is stricter about standing requirements, does not see any problem here.

What injury did Newdow suffer as a parent of a child who participates in the Pledge? Rehnquist refers to Newdow's "right to influence his daughter’s religious upbringing and to expose her to his views" but only in the context of criticizing Stevens' "novel" prudential limitation on standing. He does not address why this is a substantial enough injury to meet the constitutional requirements of standing. How does the Pledge cause a concrete injury to his interest in exposing his daughter to his views? He is still able to express his views. He is injured by the fact that she hears other views? It seems to me that the concurring Justices ought to have taken this problem seriously before going on to address the question whether the Establishment Clause was violated.

Justice Stevens' relies on a subconstitutional limitation on standing that is very much tied to the traditional role of the states making the law that governs family relations. Though the Justices joining the Stevens opinion (other than Justice Kennedy) are not usually the ones we find getting excited about enforcing federalism, Stevens has found a new use for federalism. That is especially surprising because it comes from the Justices who are usually the most interested in preserving the role of the federal courts in the enforcement of federal constitutional rights.

The idea Justice Stevens develops is that the state courts, applying state law, have already defined the rights of the child's father and mother and determined that the mother has the final say in decisions about the child's education and welfare. The mother thought the litigation over the Pledge would hurt the child, and the state court, recognizing her state law legal rights, enjoined the father from making the child a party to the lawsuit. The father was still free to sue on his own, without the child as a party, but his theory of standing to litigate still rested on his status as a father. (Constitutional standing doctrine would not allow him to sue based only on his opposition to the Pledge as a citizen.)

So what exactly was the prudential standing limitation Justice Stevens found? It seems to be that the federal courts ought to decline to act at the behest of someone who sues relying on his status as a parent if the child would be harmed by the lawsuit. Significantly, the federal court will not determine for itself whether the lawsuit is harmful to the child, but will abide by the state court's use of state law to determine which parent has the final authority to say what is harmful to the child. So, even though Newdow as a parent asserts that he is doing good for his child, California has given the mother the legal authority to decide what is good for the child, and the prudent federal court, apparently out of respect for the state, ought to abide by the decision of the mother.

Do I think the Stevens group would have said that if they weren't looking for a way both to make Newdow lose and to avoid weakening Establishment Clause doctrine? Of course not!

June 14, 2004

As noted below, the main opinion in Newdow does not address the Establishment Clause question. The three concurring opinions do, however, and all find the Pledge, with the "under God" language, constitutional. The three concurrers are Chief Justice Rehnquist and Justices O'Connor and Thomas. (Justice Scalia did not participate.) All three write up their own views of the Establishment Clause, and O'Connor also joins the Chief's opinion with respect to the Establishment Clause.

The Chief's opinion largely deals with the standing issue (which I'll discuss in a separate post), and his Establishment Clause material is largely the familiar litany of references to God in various speeches ("With malice toward none, with charity for all, with firmness in the right as God gives us to see the right...") and songs ("Then conquer we must, when our cause it is just/And this be our motto: 'In God is our trust.'"). Then the question is whether to think about the problem in terms of "coercing" participation in a religious exercise or "endorsing" religion. The Chief and Justice Thomas only consider whether there is a coercion problem, while Justice O'Connor also considers whether there is endorsement.

Justice O'Connor however finds no endorsement of religion: since the Pledge is not a prayer or an act of worship, since it does not single out a particular religion, and since it is such a long and widely practiced exercise, a reasonable person—in her view—would not conclude that government is endorsing religion.

All three concurrers apply the "coercion" standard. The Chief Justice and Justice O'Connor simply do not see a "religious exercise," so it does not matter to them that having to stand by during the exercise was called coercion in Lee v. Weisman, where students attending a graduation ceremony were seen as "coerced" merely by having to listen to a prayer. O'Connor explained that the mild coercion of being an onlooker doesn't violate the Establishment Clause when the exercise was merely one of "ceremonial deism," which is "simply not religious." Justice Thomas (like the 9th Circuit) thought that the standard articulated in Lee would make "under God" in the Pledge unconstitutional, but he would overrule Lee, so his conclusion was still that the Pledge did not violate the Establishment Clause.

Thomas's opinion is also notable in that it rejects the application of the Establishment Clause to the states at all. In his view, unlike the Free Exercise of Religion clause, and many of the other rights in the original Bill of Rights, the Establishment Clause should not be seen as incorporated into the Fourteenth Amendment: "the Establishment Clause is best understood as a federalism provision," barring the creation of a national church and barring federal interference with any establishments of religion the states may want to make. "As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected–state practices that pertain to 'an establishment of religion.'" He invites the rest of the Court to reexamine the incorporation issue. It's virtually impossible to imagine the Court going back to the question of Establishment Clause incorporation, though there were strong arguments to this effect that the Court ought to have addressed back when it initially found incorporation.

O'Connor's opinion is also interesting for its rejection of the "de minimis" argument: "There are no de minimis violations of the Constitution--no constitutional harms so slight that the courts are obliged to ignore them." As indicated above, she also accepts the term "ceremonial deism" (which "encompasses such things as the national motto ('In God We Trust'), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ('God save the United States and this honorable Court')"). It is important to distinguish the de minimis argument from the acceptance of ceremonial deism: the point is not that there are some constitutional violations that are too small to be worth the fuss of correcting, it is that some kinds of general, solemnizing references to the divine are simply not violations at all.

Justice Stevens' opinion in Newdow contains a very interesting issue about the use of state law--family law--to determine the scope of standing to sue in federal court. Why should the states be able to determine the power of the federal courts over this case? It should be noted that Justice Stevens normally takes a broader view of standing than the rest of the Court, so there will be much speculation, as there usually is with standing cases, that standing is invoked for the purpose of avoiding saying something about the merits. Here, one will tend to say that the liberal Justices did not want to unleash the furor that would be caused by ordering "under God" out of the Pledge but also did not want to weaken the Establishment Clause, so standing became an attractive escape.

Chief Justice Rehnquist writes a concurring opinion disagreeing with the Stevens opinion about standing and also reaches the Establishment Clause issue. Justices O'Connor and Thomas have also written concurring opinions. So I will have more on all of this later, but right now I've got to take the final steps in getting my Conlaw grades done, as they are due today. If only I had known Newdow would come out this morning I would have had the stamina to finish yesterday! But I promise to have some juicy conlaw things to say later. That's assuming you can find the jurisdictional side of things juicy. I'll try to show why it is. And I'll say some things about the Establishment Clause as well. Later.

The Court has unanimously decided against the Michael Newdow, the atheist who got the 9th Circuit to hold that the words "under God" in the Pledge of Allegiance violate the Establishment Clause. But the decision of the Supreme Court today says nothing about the Establishment Clause, only that Newdow lacks standing. Under state law, he lacks standing to sue on her behalf, because his daughter's mother has been given custody. He can only assert his own rights, but he had no rights to assert. No one was barring him from saying whatever he wanted to his daughter. Rather he wanted to keep her from hearing things he disagreed with. That might violate her rights, but he was in no position--because of California law--to speak for her.

So the Establishment Clause question remains to be decided another day, which may never come.

June 13, 2004

Oh, I see I've gone a week without posting any pictures, after all of those pictures last week. I was overwhelmed by visuals on my trip to New York, and now maybe Madison seems unremarkable. Tonya's Italy pictures (linked earlier today) really remind me how much traveling with a camera creates a state of high visual awareness. I will need to take some of my little car trips to small Wisconsin towns to reawaken myself. Or maybe I just need to walk in my usual places with my camera in my hand and just start seeing again. Today, when I walked from my office to the café, I fell back on my old practice of reading while walking, which is really a bit ridiculous ... and dangerous. There's some potential for unforgettable shame (more than once I've looked up, relying on my imagined radar, and seen a blind person with a cane coming toward me). Anyway, let me break the picture drought by posting one of the NY pictures I set aside last week. I call this one "Overconfident Beverage":

Fine new episode of Six Feet Under. Great to see Veronica Cartwright again. Am I the only one who, upon seeing her showing signs of nausea, pictured her projectile vomiting cherries? And I also worried way too much about Nate's car battery dying there at the end. This is a show where people die all the time, but car batteries are, apparently, immortal. But great show, great story. It kept you wondering when the dead man from 1972 would fit in, and he fit in quite nicely. And great to see Peter Krause get to play a scene in his love's grave, like Hamlet.

Tonya's back from Italy, and about to turn right back around and go to South Africa. She's got some cool pictures from Italy (I especially like the dizzying staircase with the convex mirror and the pink umbrella). Strangely yet typically, her interest in photography is Dave Matthews-related.

Elsewhere in Madison, Nina is not able to fully approve of her country's hero Lech Walesa, who recently wrote favorably about Ronald Reagan--and the way of the cowboy ("Cowboys fight for justice, fight against evil, and fight for freedom, both physical and spiritual").

That reminds me: the TiVo--Prof. Yin, don't forget I love my TiVo too--just picked up "The Man Who Shot Liberty Valance." We have Jimmy Stewart on our TiVo "wish list"! That is my favorite Western movie, I think. In an early scene, we see the old, successful Jimmy Stewart about to tell the true story of who John Wayne really is, and he begins his long story with himself at the point of having just graduated from law school. So maybe that's a good one for recent law school graduates. I just checked out the first scene, but I'm going to watch the whole thing and will report back. TiVo also picked up "Fort Apache." That one was because I have Shirley Temple on my wish list. Not John Wayne. (Not John Ford.) Shirley Temple.

Anyway, I love the character names in "Liberty Valance." Not just Liberty Valance (played by Lee Marvin), but Ransom Stoddard (the Stewart character), Marshal Link Appleyard, and Maj. Cassius Starbuckle ...

Writing that last post I read the lyrics to "Visions of Johanna" and found myself wondering whether the phrase "primitive wallflower freeze" shouldn't be "primitive wallflower frieze." After all, the verse in which the phrase appears begins "Inside the museums"--you know the museums where "infinity goes up on trial"?--and Mona Lisa also appears in this verse, so it makes sense to think of the wallflowers as depicted in a work of art, a frieze. A frieze is part of a wall, so it's a particularly apt place for "wallflowers," and "primitive" is an adjective often applied to a work of art, and somewhat nonsensical referring to a flower (though slightly off adjectives are typical of Dylan, and this verse also has "jelly-faced women").

So, despite the bluebooks lying on the desk next to my keyboard and the grade deadline looming tomorrow, I decided to Google to find an answer. Using "freeze," one of the first things I found was this (scroll through), which I found incredibly touching and wish I could understand.

Anyway, the Google score is "freeze" 214, "frieze" 2, so I'm outvoted, but I still think I'm right. And I just want to add the the rhyme set "freeze ... sneeze ... Jeeze ... knees" is quite amusing, if childish.

The NYT Book Review does a cover review of Christopher Ricks's book about Bob Dylan lyrics (which I've been reading, as noted here). The title of the book is "Dylan's Visions of Sin," as you can see in the on-line review. The paper copy, however, gives the title repeatedly as "Dylan's Vision of Sin," and the front section of the paper already has a correction. You'd think if they loved the book so much as to run it as the cover review (and just days ago they had a very positive daily review), they'd get the title right. But the reason they get the title wrong, I think, is the same reason I find myself saying the title wrong repeatedly: "vision of sin" seems more like idiomatic English. Don't we assume that the author would be writing more about Dylan's ideas on the subject of sin, rather than apparitions and hallucinations? If so, the singular is the normal form of expression. English speakers instinctively know there is an important difference between saying "The writer has a vision" and "The writer has visions."

Yet it's quite clear to me why Ricks chose the word "Visions" instead of "Vision." His style of writing throughout this 500-page book is to weave in Dylan's own words and phrases. And "visions" is a Dylan word, most notably in the song "Visions of Johanna." Using this great website, you can search for any word in Dylan's lyrics, and if you do that you'll see he never used the word "vision" to meet a structure of ideas. He only used it [the singular "vision"] once, in "Precious Angel," clearly referring to the religious apparition: "Sister, lemme tell you about a vision I saw." There are five songs in addition to "Visions of Johanna" that use the word "visions":

[I PITY THE POOR IMMIGRANT] Whose visions in the final end ...

[SOMEONE'S GOT A HOLD OF MY HEART] I keep seeing visions of you, a lily among thorns ...

[BALLAD IN PLAIN D] Countless visions of the other she'd reflect ...

[SAD-EYED LADY OF THE LOWLANDS] And your streetcar visions which you place on the grass ...

[IDIOT WIND]Visions of your chestnut mare shoot through my head and are makin' me see stars.

So Ricks had to make it "Visions" and must suffer for his sin of excessive devotion to Dylan by having his book title misinvoked.